As members of Congress discuss a tax on cosmetic surgery to pay for the healthcare bill, the blawgosphere covers the pressing question raised by Glenn Reynolds – whether this taxation of medical procedures could be extended to abortion.

Paul Caron suggests that a tax on abortion specifically (although not generally) would be seen as infringing on the constitutional rights of women:

In Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), the Supreme Court held that a Minnesota use tax on the cost of paper and ink products violated a newspaper’s First Amendment rights. Although the precise contours of this doctrine are much debated, a tax singling out the exercise of the constitutional right of abortion would likely face special scrutiny. But a general tax on elective cosmetic surgery that also reached elective abortions may be permissible under the Minneapolis Star doctrine.

Jonathan Adler agrees, citing Casey specifically, but suggests that there might be quite a few SCOTUS Justices who disagree with its standards:

Of course, this assumes that Casey would govern the case, but I think that is a fair assumption. While at least two, and perhaps as many as four, justices believe the “undue burden” test is too restrictive on states, Justice Kennedy was part of the Casey decision that established this test and has shown no indication he is willing to abandon it.

To the pro-life movement, a tax on abortion would be the ultimate “Sin Tax”, but this entire debate seems to me to only illuminate the problems with Roe v Wade. The decision in Roe was based on a constitutional right to privacy – and this suggests that abortion can no more be taxed than gay sex (ie: Lawrence v Texas). On the other hand, there’s no inherent reason why an abortion – a trivial medical procedure in the parlance of Pro-Choicers – is any more constitutionally guaranteed than a botox-injection, tummy-tuck, or tonsilectomy.

When Ross Douthat spoke at Yale last year, I asked him a pointed question on abortion, to which he responded that the problem with abortion in America is the Roe decision, because it puts abortion on a constitutionally-protected pedestal so that nothing can touch it.  Policies to limit abortions (say, to the first trimester, as is the law in some European countries) or discourage abortion (through taxation, counseling, or incentives) are perfectly legal in every other developed country in the world; only in the United States is abortion afforded special status as a fundamental right, and it is for that reason it is nearly impossible to implement policies to bring down abortion rates in America.

EDIT: Eugene Volokh extends this discussion to gun rights.

Obama at his healthcare conference:

Right now, doctors a lot of times are forced to make decisions based on the fee payment schedule that’s out there. … The doctor may look at the reimbursement system and say to himself, ‘You know what? I make a lot more money if I take this kid’s tonsils out.

Now, that may be the right thing to do, but I’d rather have that doctor making those decisions just based on whether you really need your kid’s tonsils out or whether it might make more sense just to change — maybe they have allergies. Maybe they have something else that would make a difference…

Those greedy ENT specialists have responded:

We, too, are in favor of evidence-based medicine that supports quality patient care. President Obama’s statement highlights the complexity of medical decisions like this. However, the AAO-HNS is disappointed by the President’s portrayal of the decision making processes by the physicians who perform these surgeries.

Ann Coulter:

If politicians and employers had guaranteed us “free” food 50 years ago, today Democrats would be wailing about the “food crisis” in America, and you’d be on the phone with your food care provider arguing about whether or not a Reuben sandwich with fries was covered under your plan.

• Obama says healthcare “shouldn’t be political“.
• Rich Lowry discusses why exactly Obama’s playing the Urgent Politics of Now.
• Greg Mankiw points to opposition of left-leaning Bill Gale at Brookings and Clintonite Jeff Frankel of Harvard as proof that healthcare reform has swung too far left.
• Americans now trust Obama 54%-42%.  That’s still 30 points higher than Tim Geithner’s numbers.

• No one knows where Roy Halladay’s going to end up.  My guess is Philadelphia, if he gets traded.
• Borders is trying to cash in on teen readers.
• Half-Blood Prince sells $160 million in 5 days worth of North American tickets.  And it hasn’t even hit IMAX yet.
• You should read Janet Maslin’s hillarious review of Ben Mezrich’s latest pseudofiction.
• Harvard Econ prof is also semi-pro powerlifter.

• Adam and I were discussing use and misuse Twitter, and today the WSJ suggests that companies are beginning to use Twitter effectively.
• 25% of Britons believe the moon landings (all of them) were faked.
• An Open Letter to the Obama Administration from Central and Eastern European leaders.
• In USA Today – Americans disapprove of Obama’s handling of healthcare and the economy. (52% say they call for too much expansion of government power)
• Re: Obama’s Healthcare Plan, Mickey Kaus tries to remember a time that a President effectively campaigned for an issue while in office.
• Finally, why Japan’s awesome cell phones haven’t made it overseas.

(This is in large part derived from my thoughts during an email discussion with the CLIMBfolk – primarily Jeff and Andrew)

I remember reading a story a while ago lamenting how a woman with some terminal illness (might have been lung cancer) couldn’t get reasonable health insurance.  I was astounded by how ridiculous it was to think that anyone would insure someone who was guaranteed to rack up medical costs.  Now, the problem in this particular case was that she had been forced to quit her job and she had health insurance from her job.  This obviously causes a problem, because now she’s uninsured and has what amounts to a previous medical condition which precludes her from getting insurance going forwards.

The solution, then, is to decouple health insurance from employers.  Make it so people can retain their health insurance even if they lose their jobs.  It’s well-established in economics that benefits come out of wages rather than profits; you decouple the two, wages will go up so employees can afford private health insurance.  If the government should do anything at all, it’s that they should disincentivize employer-provided health insurance.  It was FDR who got the ball rolling on this entire mess – back in 1942 he freezed wage increases at companies, but allowed benefits packages.  He also didn’t tax employee benefit packages.  So employers offered benefit packages instead of wages and they gradually became standard.

To repeat: employer-provided health insurance is bad for workers, because when they lose their job, they lose their insurance.  When they lose their job due to medical reasons, they’re screwed.  The ability to keep your health insurance should be independent of your health – that is precisely the point of insurance to begin with.  Instead, employer-provided health insurance screws you over when you truly need it.  It might have been fine for an era in which the treatment for severe illness was basically a coffin.  Now, it’s not.

To decouple employers and health insurance, all you have to do is tax employer-provided benefits, decrease the payroll tax, and you’re all set.   What will happen over time is that employers will start paying employees more and giving them less health benefits.  Then, these employees can go buy private plans which are not only better in terms of customization (because if you’re healthy, you don’t subsidize the unhealthy), but are also portable.

(Of course, this is what McCain was trying to do and he got killed for trying to ‘tax benefits’)